The Memphis appeal. [volume] (Memphis, Tenn.) 1886-1890, 1887-10-28

rights OF the enfranchiscd blacks, there
was no reason why white citizens should
not also enjoy the benefit of its provisions
Mr.. Tucker quoted the fourteenth amend
ment and discussed the meaning of the
words, Due process Of law" and said
that although it had been held by this
court that trial without indictment by
grand jury might be 'duc process OF
law" and might be perfectly constitution
al, II had never been held nor intimated
that trial by a petit jury could be dis
pensed with. II seemed, he said, TO be
everywhere conceded that due process of
law required trial by a'jury of ones peers.
After quoting copiously from authorities
and adiudged cases in support Of this posi-
ton, Mr.. Tucker said: "Now, il l have
succeeded in showing that due process OF
law means trial by jury, the question
aries, what kind OF jury? for il is the es-
sence of jury trial that il shall not be be-
fore packed jury-that a juror shall not
have made up his mind before the case is
heard that ought TO be hanged. II is es-
sential that the jury should be unbiased,
unprejudiced and impartial, and that it
should not be class jury"
Mr.. Tucker then asserted that the Jury
law OF the State of Illinois was unconsti-
tutional, in that IL provided the forming of
an opinion from reports or newspaper ac-
counts OF certain transaction should not
necessarily disqualify the person having
such an opinion from sitting in judgment
on that transaction as a jury. Even al
though the law might seem TO be fair and
just, II by construction and administration
II were made to deny the prisoners the
right OF trial by fair and impartial jury,
then such construction and administration
constituted the law and made IL unconsti-
tutional. The construction given 10 the
law in this case was different from the con-
struction given to II in large number OF
other cases in the same State.
lie then referred 10 the objections made
by the defence at the trial TO the rulings OF
the court in the matter Of challenges; to
| the refusal OF the court on u motion for u
new trial to hear evidence going TO show
that the baliG had said that "The men he
had selected for the panel would be GER
tain TO hang" and TO various other rul-
ings and decisions OF the trial court, which
had the effect Of denying 10 the prisoners a
fair trial by an impartial jury.
Turning then 10 another question raised
! 10y the case, which, he said, was n new one
in this court, he quoted the second clause
/
that "NO State shall make or enforce any
law which shall abridgc the privileges on
immunities Of citizens of the United
States" Among the privileges and inn
munitics" thus guaranteed by the four
teenth amendment were, he contended,
those set forth in the first ten amendments
10 the federal constitution, such as "the
right Of citizens 10 he secure in their per-
sons, houses, papers and effects against I'M
reasonable searches and seizures" Fourth
amcndment), and the immunity dcsig-
mated In the clause of the fifth
amendment, which provides that no
person shall be compelled inNpy criminal
case 10 be q witness against himself.
II has been maintained, he said, that
these first ten amendments 10 the consti.
tuition were limitations OF federal power
only, hut in his opinion they had also the
character Of bill Of rights. They showed
what some Of the rights Of citizens Of the
United States ~crc, and Those rights,
privileges and immunities were carried
forward and confirmed by the fourteenth
amendment. Il was his belief that unless
the privileges and immunites set forth In
the iirst ten amendments were specifically
said in terms 10 be merely limitations oI
federal power they were privileges and
immunities which came within the pur.
view Of the fourteenth amendment and
were guaranteed by IL.
Mr.. Chief Justice Ficld-Thcn YOU
would bring all questions 10 this court.
cannot conceive Of any question which
cannot be brought here IL the fourteenth
amendment makes the privileges Of i'm
munitics" 10 which II refers include al
those Of the iirst ten amendments.
Mr.. Tucker said he would admit thai
II was new question, but that he should
like TO argue Il. In the only two cases IN
which this question had been raised, In,
context showed that the purpose was e
limit the Federal power. Now, ! max,
the assertion" said Mr.. Tucker, that IN,
right 10 bc exempt from unreasonable ~
searches and seizures, the right Of freedom
OF speech; the right Of the citizen agnins
self accusation, and the right Of the either
not IN be twice tried by jury are secured Il
: him by virtue Of the constitution Of thu
United States. Being 40, the fourteenth
amendment comes in and says that ne
State shall make or enforce any law which
I abndges the rights or privileges Of citi
zcns.
, Turning TO the actions and rulings OF IN,
trial court, Mr.. Tucker said that the de
fence were driven TO peremptory challenges
, in order TO exclude jurors who shoul'
/ have been rejected for cause, and tina
! thereby there was limitation Of the RICH
( Of pcremptory challenge which this cour
4 has held 10 be one Of the highest privilege
!. Of n prisoner. THE last four juror" SAT-
, Mr. Tucker, were upon us after our per
I emptory challenges had been exhausted
4 In one case We objected distinctly upoI
Ii Al. II
= was in violation Of the constitution"
A The chief Justice inquired in what par
: Of the record this appeared.
4 Mr.. Tucker said that IL was in the cas-
4 Of the Juror, Dcnkcr, referred 10 on pag
|. IL Of the petitioners.
Mr.. Tucker then referred 10 the seiEur
!. Of letters, private papers, etc, Of one Of th
n prisoners, and their use against him 0
n evidence and ~ a basis Of cross-examini
a ton, and said that this WIS in violation {
q the fourth amendment "Ilow far" VI
a Tucker asked, would not this court 60 !
:. sustaining the rights Of the citizens II tn
q had occurred with the recently enfraI
= chised slaves Of the south2"
q Justice Miller understood you 20 81
n press the opinion that the iirst ten amen'
ncnt were all limitations Of the power
Is the Federal government
\. Mr.. Tucker-I hold that the frst e
Or amendments have n double aspect; u
"A firt Is that they are declaration Of right
"a the second is that they are n declaration
NJ rights which are beyond the reach "a ie
ne oral power.
r. In conclusion, Mr. Tucker said: "N
nj have n right, In my judgment, 10 the vi
m to be heard on the question whether q
n. constitution has been violated In order
e, compass the conviction Of these men.
~ Is true they are said 20 be anarchists.
ly the court asks me whether have NJ